The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Charles D. Brown, ("Plaintiff" or "Brown"), brought this action pro se pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. ("Title VII"), and 42 U.S.C. § 1983*fn1 against his former employer, the City of Rochester, ("the City") and two individual defendants, Paul Holahan ("Holahan") and Norman Jones ("Jones") in their official capacities (collectively "Defendants"), initially claiming that he was discriminated against on the basis of his race, retaliated against for complaining of discrimination, treated differently than other employees in the disciplinary process, and denied due process prior to his demotion and termination.
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"). Plaintiff opposes Defendants' motion, and he now specifically contends that because of his "lack of understanding of civil law," this lawsuit was misconstrued by the Defendants and the Court as a racial discrimination in employment case. See Pl. Resp. at ¶70-71 (Docket No. 32). He further states "This case is clearly not about race. This is a case of blatant misuse of power by the defendants." See id. at ¶70. He later states that he was denied due process, he suffered retaliation and he was wrongfully demoted and terminated. Id. at ¶73-4.
Plaintiff appears to have abandoned any claim he may have based on racial discrimination; and, as set forth below, he has neither alleged nor presented any evidence that any of the actions taken by the Defendants occurred under circumstances giving rise to an inference of discrimination based on his race or his membership in any other protected class. Accordingly, his employment discrimination claims must be dismissed. Finally, as Plaintiff has not presented evidence from which a reasonable jury could conclude that he was denied due process prior to his demotion or termination, his due process claims must also be dismissed.
Therefore, Defendants' Motion for Summary Judgment is hereby granted in its entirety. Plaintiff's Complaint is dismissed with prejudice.
Local Rule of Civil Procedure 56 (a) requires that a party moving for summary judgment include with its motion a "separate, short, and concise statement...of the material facts as to which the moving party contends there is no genuine issue to be tried." See Local Rule 56(a). "When a party has moved for summary judgment  and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). Pursuant to Local Rule 56 (a)(2), the opposing party must submit a separate statement which "shall include a response to each number paragraph in the moving party's statement...and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried."
Plaintiff submitted a "Response" to Defendants' motion, which is entitled "Plaintiff's Material Facts Not in Dispute Pursuant to Rule 56."*fn2 However, Plaintiff's submission does not specifically controvert Defendants' assertions, nor does it apprise the Court of any material issues of facts for trial. Rather, in seventy-six numbered paragraphs, after stating the he was "duly sworn," Plaintiff describes his employment history with the Defendants and the events that ultimately led to his demotion and termination. He also discusses his personal beliefs regarding the employment actions taken against him and describes events of which it does not appear that he has any personal knowledge and events which are not relevant to his claim.
In light of Plaintiff's failure to properly controvert Defendant's Statement of Material Facts, this Court will deem those factual assertions admitted to the extent they are supported by the record. See Local Rule 56 (a)(2) (statements of undisputed fact that are not controverted by the non-moving party are deemed admitted). However, as Plaintiff is proceeding pro se, the Court has considered his submission, to the extent it asserts facts of which Plaintiff has personal knowledge and which are relevant to this claims. Accordingly, the following facts are taken from the record, including Defendants' Local Rule 56 Statement and accompanying exhibits (Docket No. 34) and Plaintiff's Response (Docket No. 32).
Plaintiff Charles Brown is an African-American who began working for the City in 1999 in the Building Services Division (a division of the City's Department of Environmental Services ("DES")). He was promoted to the position of Maintenance Mechanic, also within the Building Services Division, a position which he held until approximately July 2008. For the majority of his tenure as a Maintenance Mechanic, Brown was a member of the "Board-up Crew," which is a group that works with City law enforcement and neighborhood centers to secure (i.e., "board up") properties around the City that have been rendered vacant following drug raids and emergency evacuations.
The record reveals that Plaintiff had a checkered employment history with the City. His disciplinary record details approximately 28 disciplinary infractions from 2000 through 2006, including poor work performance, unauthorized absences and insubordination. Plaintiff admits to some of these violations, but he argues that several were unwarranted or unsupported by evidence.
In 2006, the City terminated Plaintiff's employment following his arrest for illegal drug and gun possession. However, Plaintiff successfully utilized the City's internal grievance process, and was later reinstated to his job as a Maintenance Mechanic in the Building Services Division. That process took approximately 15 months, at the conclusion of which Plaintiff was awarded back pay, benefits and returned to his prior position and pay grade. He then returned to working with the Board-up Crew. Plaintiff states that other employees and Defendant Jones treated him differently after he returned.
Plaintiff was transferred to the "Carpentry Crew" within the Building Services Division after complaining of safety concerns with the truck used by the Board-Up Crew, in May 2008. The record also indicates that the City determined a transfer was warranted to address various problems between Brown and his co-workers. Plaintiff's duties (other than utilizing the truck) were ...